E-3

Specialty Occupation Professionals from Australia (E-3)

The E-3 visa category permits U.S. employers to hire Australian nationals as "specialty workers" in certain professional occupations and employ them in the United States on a temporary basis. Initial E-3 status may be issued for a maximum of two years, but E-3 status may be renewed indefinitely, in two-year increments.

The E-3 category is an attractive alternative to H-1b status for Australian professionals. Among its advantages is that no USCIS petition is required – the merits of the job and beneficiary’s eligibility are adjudicated by a U.S Consular officer at the time of the visa interview. Additionally, while Congress has imposed a cap of 10,500 E-3 visas per fiscal year, that annual cap has not yet been reached. E-3 visas are reliably available throughout the year.

E-3 consular processing requires an employer first secures a Labor Condition Application from the Department of Labor for the prospective employee. Then the prospective employee files a DS-160 Nonimmigrant Visa Application online and attends an E-3 visa interview at a U.S. consulate abroad.

The U.S. Employer

United States employers may hire Australian skilled workers or professionals for E-3 positions. A United States employer is defined as:

A person, corporation or other business entity which engages an individual to work in the U.S.;

Who has the power to control the work of that individual; and

Has obtained an Internal Revenue Service tax identification number.

This broad definition leaves open the possibility for one entity to hire an individual and oversee her day-to-day activities, while another entity, such as the U.S. employer's foreign corporate parent, pays her salary. It also sustains the opportunity for a sole shareholder corporation to petition on behalf of its non-U.S. shareholder to be hired as sole employee (although USCIS may invoke other arguments to deny such petitions).

"Specialty Occupation"

The "specialty occupation" requirement for the E-3 visa is identical to the H-1b visa, in that the prospective employee must be engaged in an occupation that requires: (1) the application of a body of highly specialized knowledge; and (2) the attainment of at least a bachelor’s degree or equivalent experience in the specialty field. To qualify as a specialty occupation, USCIS rules require a position to meet one of the following criteria:

Minimum educational requirement for the position is normally a bachelor's degree or higher;

The employer's degree requirement is consistent with that used by other organizations for comparable positions;

The employer normally requires a degree or equivalent for the position, or

The nature of the specific duties is so specialized that knowledge required to perform them is usually associated with attainment of a bachelor's degree or higher.

This broad language has been found to include occupations in the fields of architecture, engineering, mathematics, social sciences, medicine and health, business specialties, law, accounting, education, veterinary science, and journalism, among many others.

Prospective Employee Qualifications for Specialty Occupation

In order to qualify for a particular specialty occupation an E-3 applicant must:

Have completed a bachelor’s degree related to the occupation, or have experience in the occupation equivalent to completion of such a degree and achieved recognition of their expertise through progressively responsible positions related to the specialty; and

If a license is required for the position in the U.S., either hold the license when applying for the visa, or show the required license will be obtained within a reasonable period of time following arrival in the U.S.

Although an Australian bachelor’s degree may be completed in 3 years, compared to 4 years required by a U.S. university, the one year difference has not been an issue in consular E-3 applications. USCIS takes a firm position in other contexts that a 3 year degree does not equate to bachelor’s degree awarded by a U.S. university, however.

Labor Condition Application

The petitioning employer must secure a Labor Condition Authorization (LCA) from the U.S. Department of Labor for an E-3 beneficiary, the same requirement as for an H-1b. The application describes the position's title, location, wage, period of employment, location, and method of determining the prevailing wage. Most significantly, the LCA requires the employer to attest that:

Wages offered to the E-3 employee are the higher of the actual wage the employee pays for comparable positions or the local prevailing wage for positions of substantially the same duties and responsibilities;

Employment of the E-3 will not adversely affect the working conditions of similarly situated employees;

The position is not one for which a strike or lock-out is in effect at the employee's proposed workplace; and

A copy of the LCA has been provided to other employees and, where applicable, to their union.

The employer's prevailing wage determination may be supported by several alternative methods, depending on the circumstances, including federal government wage data, a wage determination from the National Prevailing Wage Center, a union contract (if there is one), or a private wage survey published by an independent authoritative source.

Public File Obligations

The E-3 employer must maintain certain documents (both during and after an employee's term) within a public access file. This file must be made available on request to persons asserting an E-3 related labor complaint, as well as to certain other interested parties. This file must include:

A copy of the LCA;

A document describing the wage rate payable to E-3 employee;

A document explaining the method by which the employer determined the wage payable to the E-3;

A document describing the determination of the prevailing wage;

A copy of the notice of the E-3 petition as provided to employees or the union;

A summary of the benefits offered to U.S. workers in the same occupation classification as the E-3; and

If the employer has been involved in a merger, acquisition, or other corporate restructuring, a document demonstrating the employer's agreement to assume the prior employer's commitments and obligations with respect to the E-3 petition.

Consular Processing or USCIS Petition

A U.S. employer may employ an individual in E-3 status after the individual has received an E-3 visa from a U.S. consulate abroad and entered the U.S. in that status. The application process requires the employer to secure an LCA from the State Department, and the prospective employee to file a DS-160 application online, pay the MRV application fee, and attend an E-3 visa interview at a U.S. Consulate.

However, if the prospective employee is currently in the U.S. in another nonimmigrant status (other than pursuant to a Visa Waiver admission), the employer may instead choose to file an E-3 change of status petition with USCIS. The disadvantage to this method is that the employee may not begin working until the petition has been approved. Since E-3 petitions are not eligible for USCIS' Premium Processing Service, adjudication may take several months. USCIS filing may be appropriate, however, where an individual is currently in the U.S. in another nonimmigrant status, has concerns about denial of readmission on unrelated grounds, or has other reasons to remain in the U.S.

The USCIS process may also be used to extend a current employee's stay in E-3 status. In 2016, USCIS amended its rules to permit E-3 beneficiaries to continue employment for up to 240 days after expiration of E-3 status while an employer’s timely filed extension petition is adjudicated.

As noted above, USCIS does take the view that a 3 year bachelor’s degree is not comparable to a Bachelor’s Degree awarded by a U.S. university. This could lead to a result where a consulate has approved an E-3 visa, but USCIS won’t extend the status. As a general rule, consular processing for E-3 extensions is usually the preferred route.

Cap Issues

While Congress has placed a cap of 10,500 E-3 visas per fiscal year, in the more than 10 years since the category was established, the cap has yet to be reached. Furthermore, the cap does not apply to cases in which an employer is seeking the extension of a previously granted E-3 petition or in cases where an employer seeks reissuance in light of an employee's job change where she is already in E-3 status. The cap also does not include E-3 visas issued to spouses and children. However, unlike the H-1b cap, the E-3 cap does apply if an E-3 employee changes employers.

This is one reason why the E-3 visa may be an attractive alternative to the H-1b visa for an Australian professional.

Change or Addition of Employers

The E-3 employee is not bound to her original employer throughout the term of the petition grant. However, unlike H-1b "portability," she cannot begin to work for a new employer until either: (1) the new employer's E-3 petition has been approved, or (2) the employee has departed the U.S., applied for a new E-3 visa at a U.S. consulate, and reentered the U.S. in E-3 status pursuant to the new employment.

Extensions

The employer may secure an indeterminate number of two-year extensions to an employee's E-3 status. Note that since the E-3 classification is deemed a temporary status, employers must demonstrate why they continue to need the professional's services, and, technically, USCIS or a U.S. consulate could refuse to extend the status further. Note also that USCIS rules do not permit appellate review of denials of extensions of nonimmigrant visas, and the State Department does not permit appeals of visa denials, so if an E-3 extension or visa application is denied, the only recourse is reapplying.

Termination of Employment

Upon termination of employment (whether voluntary or involuntary), the E-3 beneficiary may remain in the U.S. for up to 60 days, or until the end of her authorized period of stay, whichever is shorter. There is no USCIS regulation requiring the employer to pay transportation costs upon involuntary termination (unlike with H-1Bs). If the E-3 finds a new job, she must recommence the applicable E-3 process from the beginning.

Dual Intent

E-3 status does not incorporate the concept of dual intent – nonimmigrant admission with the concurrent intent to adjust status to permanent residence thereafter. This is a notable departure from the opportunity afforded beneficiaries of H-1b, L, and O employment-based nonimmigrant categories, and stands as the E-3's chief disadvantage. An individual seeking admission in E-3 status will have to overcome the presumption that she is entering for the purpose of immigration. This is usually accomplished by a declaration by the individual that she intends to depart the U.S. at the end of her authorized nonimmigrant stay. However, the E-3 individual does not have to maintain a residence abroad to demonstrate nonimmigrant intent.

USCIS and the State Department have also stated that approval of an immigrant petition on behalf of an E-3 individual may not be the sole basis for denying U.S. admission, or a petition requesting change or extension of E-3 status. However, in such situations, a nonimmigrant status that allows dual intent may be preferable for the employee.

Dependents

The spouse and minor children of the E-3 employee may accompany her to the United States and reside with her for the duration of the approved term, regardless of their nationality. A dependent spouse of an E-3 visa holder may obtain employment within that status by filing Form I-765 with USCIS. Children of E-3 principals may not obtain employment authorization. The E-3 spouse may also secure E-3 or other employment status independently. E-3 dependents also have the option of obtaining admission to the United States on business visitor (B-1) or tourist (B-2) visas (neither of which authorizes employment).

About Charles A. Tievsky

Charles A. Tievsky practices immigration law with a passion for achieving his client’s objectives, and with a clear understanding of the importance to his clients of every immigration, no matter how simple or complex. His clients include well-known multinational corporations, entrepreneurs, software and technology companies, retail businesses…